Kirwa v. United States Department of Defense, Civil Action No. 2017-1793

Background

Plaintiffs are MAVNI enlistees serving in the Army Selected Reserve who seek naturalization under 8 U.S.C. § 1440 and require DOD-signed Form N-426 certifying past honorable service.
Historically, DOD branches routinely certified N-426s for Selected Reservists based on past drilling service (often after one qualifying day), enabling expedited naturalization for many MAVNIs.
In 2017 DOD implemented a change: an August instruction to withhold N-426s pending active-duty service, followed by an October 13, 2017 Guidance requiring (inter alia) no pending disciplinary matters, completion of vetting, and sufficient service to permit a determination of honorable service (interpreted to require present suitability).
Plaintiffs challenged DOD’s refusal to certify N-426s as violating the APA (5 U.S.C. § 706), mandamus, and constitutional provisions (Naturalization Clause and Fifth Amendment). The Court previously granted a preliminary injunction and certified a class.
Defendants moved to dismiss or for summary judgment; the Court evaluated reviewability, APA § 706(1) and (2) claims (including arbitrary/retroactive change), and constitutional claims.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Reviewability: Is DOD’s N-426 policy committed to agency discretion or otherwise unreviewable under the APA?	DOD’s N-426 decisions are ministerial and reviewable; §1440 and past practice provide meaningful standards.	Military and national-security discretion renders the decision unreviewable; courts should defer.	Court: Policy is reviewable; statute + practice supply meaningful judicial standards; military deference not carte blanche.
APA § 706(1) (unlawful withholding): Has DOD failed to perform a non-discretionary duty to certify N-426s based on past service?	DOD must certify N-426s when past service—at date of submission—qualifies as honorable; present suitability cannot be grafted onto §1440.	DOD may require present suitability determinations before certification.	Court: Plaintiffs plausibly allege unlawful withholding; DOD cannot rewrite §1440 to require present suitability for past service.
APA § 706(2) (arbitrary/capricious & retroactivity): Is the October 13 Guidance arbitrary, lacking reasoned explanation, and impermissibly retroactive?	The Guidance departs from longstanding practice without adequate on-the-record explanation and imposes new legal consequences on prior service.	The Guidance merely formalized long-intended standards; not retroactive; post-hoc explanations suffice.	Court: Guidance is a substantive change from past practice, appears retroactive, and lacks adequate contemporaneous rationale; defendants’ later declarations are post-hoc and insufficient on summary judgment record.
Constitutional claims (Naturalization Clause & Due Process): Do plaintiffs state cognizable constitutional claims?	October 13 Guidance imposes extra-statutory preconditions to naturalization and deprives plaintiffs of property/process rights to apply for citizenship.	Plaintiffs lack standing under Naturalization Clause; no protected property interest yet; broad agency rules do not require individualized process.	Court: Naturalization Clause and procedural due process claims survive dismissal as facially plausible; substantive due process claim dismissed for failing to identify a recognized fundamental right.

Key Cases Cited

Ashcroft v. Iqbal, 556 U.S. 662 (constitutional pleading standard for facial plausibility)
Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55 (APA § 706(1) requires a discrete, non-discretionary duty to compel)
Motor Vehicle Mfrs. Ass’n v. State Farm, 463 U.S. 29 (arbitrary-and-capricious review requires reasoned explanation)
FCC v. Fox Television Stations, 556 U.S. 502 (new agency action or change in policy requires reasoned explanation)
Landgraf v. USI Film Products, 511 U.S. 244 (tests and cautions for retroactivity of rules)
Gustafson v. Alloyd Co., 513 U.S. 561 (identical statutory language should be given the same meaning)
Heckler v. Chaney, 470 U.S. 821 (agency action committed to agency discretion doctrine)
Meina Xie v. Kerry, 780 F.3d 405 (interpretation of immigration statutes about past service requirements)